Netflix To Try Crowdsourcing Subtitles; Will It Get Sued For Infringement?

from the rock-and-a-copyright-law dept

Before getting into the details of this new story, let me bring up a pair of recent Techdirt stories as background. First, there's the story of Netflix being told that not having closed captioning on its streaming movies means it violates the Americans with Disabilities Act. As we noted at the time, this raised interesting copyright questions, considering that Netflix may not be legally allowed to put captions on videos. A few days before that, we had written about a student who ran a site that provided crowdsourced downloadable subtitle files for TV and movies, and had been found guilty of copyright infringement.

Knowing both those things, isn't it interesting that Netflix is now experimenting with crowdsourcing captioning/subtitles for films and TV shows? Perhaps it figures that having lost that first legal fight, it should lean in the other direction and see if it gets sued there as well. Either way, it seems like it opens up some pretty serious copyright questions. While some of us think that providing captions/subtitles should be pretty clear fair use, others (obviously) disagree. And, when it's an operation like Netflix -- which is obviously a commercial entity -- you have to wonder if it's going to get sued...

Reader Comments

Damned if you, Damned if you don't

This is a great example of how the people that make/rule on/enforce the laws of this country have no clue as to the true meaning of the law of unintended consequences.

I'll provide the most apropos explanation just for reference:

"A negative, unexpected detriment occurring in addition to the desired effect of the policy"

Copyright law may make it is illegal to follow the requirements of the ADA. Left hand, right hand, Anyone?

IMHO If the ADA does require it then that should automatically make it fair use. Or in the case of the student the benefit out weighs the detrimental effect that the copyright holder might (huge might) experience.

Damned if you, Damned if you don't

This is a great example of how the people that make/rule on/enforce the laws of this country have no clue as to the true meaning of the law of unintended consequences.

I'll provide the most apropos explanation just for reference:

"A negative, unexpected detriment occurring in addition to the desired effect of the policy"

Copyright law may make it is illegal to follow the requirements of the ADA. Left hand, right hand, Anyone?

IMHO If the ADA does require it then that should automatically make it fair use. Or in the case of the student the benefit out weighs the detrimental effect that the copyright holder might (huge might) experience.

Damned if you, Damned if you don't

This is a great example of how the people that make/rule on/enforce the laws of this country have no clue as to the true meaning of the law of unintended consequences.

I'll provide the most apropos explanation just for reference:

"A negative, unexpected detriment occurring in addition to the desired effect of the policy"

Copyright law may make it is illegal to follow the requirements of the ADA. Left hand, right hand, Anyone?

IMHO If the ADA does require it then that should automatically make it fair use. Or in the case of the student the benefit out weighs the detrimental effect that the copyright holder might (huge might) experience.

Damned if you, Damned if you don't

This is a great example of how the people that make/rule on/enforce the laws of this country have no clue as to the true meaning of the law of unintended consequences.

I'll provide the most apropos explanation just for reference:

"A negative, unexpected detriment occurring in addition to the desired effect of the policy"

Copyright law may make it is illegal to follow the requirements of the ADA. Left hand, right hand, Anyone?

IMHO If the ADA does require it then that should automatically make it fair use. Or in the case of the student the benefit out weighs the detrimental effect that the copyright holder might (huge might) experience.

Re: Re: Damned if you, Damned if you don't

Time out errors != Not received.

Time out errors indicate the server reply for some reason was unable to reach you, which means in most cases it got dropped along the way somewhere and of course when the server fails to respond at all.

Every time this happens to me I get paranoid about censorship and intrusive monitoring which are the main causes of such glitches(i.e. replies getting dropped).

Re: Damned if you, Damned if you don't

qu-qu-qu-quadera post

anyway, as an anarchist this is kinda my inter point, giving a small set of people the right to screw over whoever they feel like, is exactly what it sounds like no matter what if's and but's u write into the "social contract" the state loves writing hypocritical laws and there is no way to stop them from doing so but not letting anyone get the "only legit" use of force on others

I am trying to figure it out: How are subtitles, which is the same as the words of the script, some sort of fair use? Wouldn't Netflix be boosting their service by offering these things, therefore making it a commercial project? It's not a sample, it's not a review, it's not research.

So, I repeat the question, oh holy Mike: How the hell could it be fair use? Or are you just going to label eveything possible "fair use" and when a court case comes down on your side you will post up a dozen "told you so" posts on here and harp about the expanding fair use universe?

Please, explain it to us mere serfs in simple terms we can understand - and cite your examples in law.

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Maybe because it's a service for movies they already sell legally and not an attempt to distribute the script stand alone? Under a sane copyright law making paid for content more accessable would be a clear case of fair use

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OR

Netflix sues every studio that provides them with movies that DON'T have subtitles for selling them illegal material.

There's GOTTA be a way to make the studios liable for this, since they're the ones saying that you can't just do subtitles yourself. If you gotta have subtitles to be a legal product, then why are the studios allowed to provide the film without them?

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Since you want to go to one extreme, I think we should go to the other. How about we just wipe out copyright altogether. You don't want it out there, keep it locked in a vault and go visit it every once in awhile while mumbling.. my precious!

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Paul is right. He never said that the subtitles are words that don't have anything to do with the movie. What you fail to see is how different subtitles are from a script, much less how small a part they are of the entire work (which is the movie, not just the script). Here's an example from the Dark Knight. You can find the script here and an example subtitle can be found here. I'll provide the first 10 or so lines from each and you see what would be easier to make a movie out of.

Subtitles:

1
00:01:45,105 --> 00:01:47,939
Three of a kind, let's do this.
That's it? Three guys?

2
00:01:48,106 --> 00:01:51,438
Two guys on the roof. Every
guy gets a share. Five shares is plenty.

DAYLIGHT. Moving over the towers of downtown Gotham... Closing in on an office building... On a large window... Which SHATTERS to reveal-

INT. OFFIC, HIGH RISE -- DAY

A man in a CLOWN MASK holding a SMOKING SILENCED PISTOL ejects a shell casing. This is DOPEY. He turns to a second man, HAPPY, also in clown mask, who steps forward with a CABLE LAUNCHER, aims at a lower roof across the street and FIRES a cable across. Dopey secures the line to an I-beam line- CLAMP on- sends a KIT BAG out then steps OUT the window...

EXT. HIGH RISE -- DAY

...into space. The men SLIDE across the DIZZYING DROP... landing on the lower roof across the street.

You'll notice that the subtites offer absolutely no clues as to who is speaking or what is going on (with the exception of some timing info), whereas the script hasn't even gotten to a single spoken line yet.

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Are YOU that dense? *fucks AC*

It's really an idiocy: the words are being transmitted to the audience via sound waves but just because you are transmitting them via photons in the form of a subtitle in the screen then it's fucking infringing? Have you stopped to think about how insane is this?

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This is what you said:

How are subtitles, which is the same as the words of the script, some sort of fair use? ... It's not a sample...

You're wrong. It is a sample of the script. And yes, it's only the spoken lines of the script, but sometimes those don't even match the script exactly, and sometimes they include other audio bits, such as whether music is playing, or a gunshot occurred. Subtitles aren't nearly enough to be a replacement for a script, much less a movie. They are very small portions of most scripts and even smaller portions of the entire movie.

Re: Re: Re: Re:

FYI, any non-english viewer can easely tell. They often (over)simplify the dialogs properly due to too limited a time to read the full thing probably.

No they don't. I watch movies with subtitles in Portuguese but I understand English easily and the only thing that changes are the sentences that don't have a literal translation like idiomatic expressions. There's far enough time to put every single word said in the subtitles.

Re: Re: Re: Re: Re:

I've seen some movies where they don't have all of the dialog. I can't think of anything specific off the top of my head right now, but I know I've seen instances where what was spoken was more than what is subtitled, and these are subtitles from the studio.

Re: Re: Re: Re:

They often (over)simplify the dialogs

As an English-speaking USian, I often watch Netflix with English subtitles turned on, and can attest to the truth of this.

Not only that, but often it's clear that the subtitles were created by somebody listening to the show rather than transcribing from a script. The tipoff is when I see "(unintelligible)" for understandable dialog, or when homophones are mistakenly used.

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On the other hand, maybe (unintelligible) IS in the script, but the actor felt he had to say SOMETHING. And you may give the person who wrote the script too much credit - who says they used the right words in the script?

Not that I doubt what you're saying, though. Sometimes when an old movie is closed-captioned (a form of subtitling) on TV you can tell someone is actually attempting to caption it live.

Re: Re: Re:

Oh dear, you really don't know how to handle a conversation, do you?

Anyway, ignoring your idiotic insults, your first comment said "the words of the script" are the same as the subtitles. This - to anybody who's actually read subtitles - is wrong. Quite often, for reasons of readability, brevity and the like, the subtitles on screen may not be the same as the words spoken in the film. The original script will also differ due to improvisation on set, editing and so forth, and will contain far more than just the words spoken by the characters. You can't download a subtitle file and use it as a replacement for the film. You'd struggle to follow the whole of Glengarry Glen Ross from the subtitles words alone, let alone the average blockbuster.

So, no, you were wrong and trying to mock me doesn't change reality.

You can't even get this simply concept correct, and yet you expect the rest of us to believe you when arguing more complicated issues? Please. That's not even going into the more obvious stupid points here, such as the fact that absolutely nobody would download a subtitle file instead of watching a film, and there's no logical reason why such a file from the DVD would not be supplied to Netflix in the first place.

But, go ahead, be a dickhead and see how many opinions you can sway by lying, distorting and acting like a jackass. If it's greater than zero, I'll give you a cookie like the 6 year old you try to imitate during these arguments.

Re:

Re:

So, I repeat the question, oh holy Mike: How the hell could it be fair use? Or are you just going to label eveything possible "fair use" and when a court case comes down on your side you will post up a dozen "told you so" posts on here and harp about the expanding fair use universe?

Four factor test:

* The purpose and character of the use

It is used to enhance the value of the original, authorized work, not as a substitute. It is part of a commercial endeavor as you noted, but being commercial does not mean fair use does not apply.

* The nature of the copyrighted work

One of the considerations for this factor is if dissemination of the work "benefits the public." Given the nature of the ruling on the ADA and the fact that this would help the hearing impaired, we can check off that factor as well.

* The amount and substantiality of the work

The text is just a part of the overall movie, and not necessarily a key part.

* The effect of use on the market

Zilch. Putting the subtitles on it will not harm the market for the movie itself (quite the contrary, it likely adds to the market). Nor does it hurt the market for the script. No one buys the script because the subtitles aren't available.

Of course, as with any fair use decision, judges can make wacky decisions, but I think there's a strong case to be made that subtitles hit on all four factors (and you don't even need to win all four factors).

Re: Re:

The text is just a part of the overall movie, and not necessarily a key part.Not only that, but the subtitles aren't even the entire script, and sometimes don't match the script if any improvisation occurs. Subtitles [usually] don't indicate who is speaking, leaving that up to visual cues, subtitles won't have much if any cues meant for actors/directors/etc such as [SHOUTS] or [SMILES], subtitles also won't have information on setting, such as who is in a scene, where it takes place, what time of day, etc. Subtitles are simply to show what is being said and describe a few other important sounds/noises/music. If the AC above thinks a movie is as easy to make from a copy of the subtitles as from a script, I'd be happy to offer him just the subtitles from a movie he's never seen and see what he can do with it.

Re: Re:

The ADA ruling isn't binding to Netflix. The ADA ruling wouldn't suddenly give Nexflix "fair use". The benefit to the public isn't as large as that, and at any rate is for the studios to fix, not a distributor.

"The text is just a part of the overall movie, and not necessarily a key part."

You are suggesting that what the characters say in the movie isn't a key part of the movie? Wow.

"Putting the subtitles on it will not harm the market for the movie itself "

Not directly, but it usurps the right holder's position to do this work and provide this with their product.

I would say that you would be LUCKY to get 2 out of 4 factors here, especially considering the ADA decision is not directed at Netflix or any other retail seller / lender of movies. It's a poor justification for "fair use".

Now, on the other side, if Netflix has subtitles but other sellers / lenders do not, have they gained a commercial benefit from this action? That might actually hurt the market, making it harder for others to sell or lend their copies, and perhaps causing a decrease in sales.

Re: Re: Re:

You are a retard. It is binding, judicially binding. It's about two laws in conflict and yes it can be fair use.

and at any rate is for the studios to fix, not a distributor.

Except that your bosses aren't interested in fixing anything so far. The solution to their woes have been pointed ad nauseam.

You are suggesting that what the characters say in the movie isn't a key part of the movie? Wow.

No, you idiot. He's saying that the written subtitles are just part of the movie. You know, the actors won't suddenly go mute and the dialogs won't vanish if you add or strip subtitles. God you are a moron.

Not directly, but it usurps the right holder's position to do this work and provide this with their product.

Yes because they won't spend a penny if Netflix does the job so it's harming them financially. But I get your point, you want to make Netflix pay yet another type of license. Greedy moronic bastard.

I would say that you would be LUCKY to get 2 out of 4 factors here, especially considering the ADA decision is not directed at Netflix or any other retail seller / lender of movies.

Reading comprehension fail. As always.

That might actually hurt the market, making it harder for others to sell or lend their copies, and perhaps causing a decrease in sales.

Hint: there's demand for that. Offer that service. But your damned MAFIAA refuses to add value to the costumer. Hint2: if it's fair use for them to crowdsource subtitles and use then it is for you too. And honestly, fansubers do a better job than you.

Re: Re: Re: Re:

"You are a retard. It is binding, judicially binding. It's about two laws in conflict and yes it can be fair use."

Did the ADA order Netflix to put subtitles? Did they specifically allow them to ignore copyright and do it? Nope. What is retarded is making an assumption that just isn't there.

"No, you idiot. He's saying that the written subtitles are just part of the movie. You know, the actors won't suddenly go mute and the dialogs won't vanish if you add or strip subtitles. God you are a moron."

Me, a moron? Are you kidding? If you took those subtitles and made a book out of them do you think you would be violating copyright? Netflix has the rights to the movie AS PROVIDED - can you show me where they licensed the script for subtitles?

"But your damned MAFIAA refuses"

Ahh, I was almost treating you like a smart guy, turns out you are just another Techdirt jackass with your head so far up your ass you can't even smell it when you fart. Too bad.

Next time let Mike answer, you are too much of a jackass to bother with.

Re: Re: Re:

"You are suggesting that what the characters say in the movie isn't a key part of the movie? Wow."

It is indeed a key part of the movie, and the subtitles cover the length of the movie, not just some excerpt. On the other hand, there are very few movies where it could stand alone and be worth reading with no context. Not that anyone is trying to MAKE it stand alone.

"Not directly, but it usurps the right holder's position to do this work and provide this with their product."

Except the producers aren't doing this, which is the problem. If they want to include subtitles I'm sure Netflix would be happy to use them instead of making their own. And I'm sure it would be extremely illegal under the ADA to attempt to charge more for including subtitles, so I don't think you could argue that this would be a potential revenue stream.

"I would say that you would be LUCKY to get 2 out of 4 factors here"

But it's not just the number of factors, it's the strength of them. One factor can override the others if it's strong enough. I think that once the judge got to "The purpose and character of the use" and saw that the purpose was to help deaf people who were viewing a movie that had been paid for, and/or that the purpose was to COMPLY WITH THE LAW, that would be enough, and the other factors would be practically ignored. Especially when the other side couldn't point to any actual damages resulting from the so-called infringement.

"Now, on the other side, if Netflix has subtitles but other sellers / lenders do not, have they gained a commercial benefit from this action? That might actually hurt the market, making it harder for others to sell or lend their copies, and perhaps causing a decrease in sales."

Except Netflix could not claim copyright on the subtitles - since they soley consist of dialougue from the movie, the copyright on them would still be with whoever has the movie copyright. Meaning any other seller/lender could use Netflix's subtitles in the same way (not to mention that they could just do the work and make the subtitles themselves.)

Anyway. Since "what the characters say in the movie" is "a key part of the movie", it should be legal to show the captions with the movie. You're just showing in a different way what's alredy happening on the screen. What's next, they're going to claim stereo speakers are infringing because the audio signal is split into 2 "copies" when someone listens?

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I imagine the deaf public would disagree with you. The benefit to them is quite large. Do they simply not matter to you?

"...and at any rate is for the studios to fix, not a distributor."

You're correct, but they're not. So someone else is stepping in to do their job for them, at no cost to the them.

"Not directly, but it usurps the right holder's position to do this work and provide this with their product. "

Not it doesn't. They are still entirely able to provide their own service. I can't see how they are restricted in any way. In fact if they did, others wouldn't have to make the effort instead.

"Now, on the other side, if Netflix has subtitles but other sellers / lenders do not, have they gained a commercial benefit from this action? That might actually hurt the market, making it harder for others to sell or lend their copies, and perhaps causing a decrease in sales."

Jebbers, did need a brain injury to come up with a backwards logic like that? Making a product more useful, more desirable, more helpful, causes less people to buy it? In what universe has that ever happened?!

That has got to be the weakest, most pathetic attempt to defend ridiculous copyright restrictions I've ever read.

Alphabet Soup

The fact that closed captions and subtitles are very pervasive with pre-recorded media and cable and OTA broadcasts is one of the weak point of streaming services.

If you are using any similar product, you've already got the caption data. You can create a better experience in this regard yourself. You can just use the readily available raw data and associated tools.

Re: Alphabet Soup

Not if the studios do not provide that data to Netflix. We see it time and time again, where they want to protect their cash cows, ticket sales, television & home video, so they supply an inferior product to anything internet or computer related. Hell if you buy a blu ray that includes a digital copy, the digital copy is SD and not HD, even when iTunes sells an HD version.

Re:

Yes, but the people that care about ADA spend their funds trying to 'HELP' those with Disabilities....

It seems counter-intuitive for them to take their funds and throw them at congress (aka lobbing, as in lobbing money at politicians...)

If only we could set it up so that it was large containers of pennies being rained down from an orbital drop with precision.... It would only take about $100,000 in pennies to fix our problem in DC with proper targeting...

Pennies falling from sufficiently high orbit and blanketing the Pentagon, White House, and most of the rest of DC (there's not much real productivity going on there anyway) would pretty much obliterate everything.

Perhaps we could crowd fund this.... everyone pitch in a penny that you would like to "deliver" to your favorite congress critter... they want our money, sure HERE you go...

/sarcasm for those who may think I'm just a delusional conspiracy theorist designing 'creative' political contribution methods...

Re: Re:

you know that pennies dropped from orbit would burn up in the atmosphere and never reach earth, right? and even if they did, they wouldnt be going any faster than if you had dropped them from a mile up.

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This is what I was wondering too. Netflix is the content delivery system, but they are not the content providers. Wouldn't the rightsowners be the ones that are responsible for providing Netflix with content that is in compliance with the ADA?

Of course they'll get sued. This is like a studio's wet dream. If they can find a judge who would side with them that this is copyright infringement, then this gives the studios the sort of leverage they need to either shut down Netflix or milk them for a LOT more money.

"Sorry, you can't show out movies anymore because they aren't subtitled/captioned (because doing so is a violation of the law, but not doing so is also a violation of the law)... Although, come to think about it, we do happen to have this handy captioning license you can purchase...."

This whole debate is retarded

Seriously, why is there any discussion about this? Making subtitles accessible is simply a visual component to the video. Some people get along fine hearing the dialogue, some of us don't. Subtitles should be PART of the package.

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If they do sue, it sounds much like the Paramount Decision of 1948. Basically, instead of theatres, they are using digital distribution as the lockout for competition by not supplying subtitles for digital streams.
I would hope that Netflix, Amazon, etc could put them in their place and hopefully get even more licenses from it.

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Basically, Movie production companies (Paramount, MGM, Fox) were limiting distribution to third party theatres and controlled both distribution and production, so it created a monopoly for itself.
If they do the same with subtitles, this imho could come back to bite them.

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Kafka anyone?

...you have to wonder if it's going to get sued...

Er, not really. It may be Netflix is trying to force the issue by bringing the Kafkaesqueness (or Catch-22 if you will) of the whole situation to the fore. "Hey, we were told it's illegal not to have subtitles, now we're told it's illegal to have subtitles -- some equity please your honor..."

Does That AC have a mission to disrupt all sensible discussions ?

My impression was first that opposition from AC could have the benefit of the needle preventing self-indulgence consensus. Props for the persistence to that respect Mr. AC.

Problem it now appears to me as mostly aimed at parasiting any attempt of fruitful dialog on the theme set by a given post that may come up in the thread. Motivated by a kind of personal vendetta, a particularly obsessive behavior, or simply a commissioned work is almost irrelevant.

So Mr. AC, would you mind provide a view on the matter raised by the post. E.G. What's the risk for Netflix to be sued here under current system and with the current players?in your opinion. Are they doing it right ?

Obviously not asking for a prospective view of how the system should evolve, as you playground is strictly on how things are today in the letter of the law, with players defending their absolute immaterial "property".

The funny thing is I would find it truely interesting to have that analysis from an IP maximalist on the gien situation. And why not, bring some actual sense of reality into us poor padawans.

Please stop whining, stop the disruptive controversy, personal attacks and bring it on with actual analysis.

i hope it gets sued now for making sub titles available. perhaps then, a case can go to court over the whole issue because, basically, Netflix is damned already because it didn't, then would be damned if it did. it goes to show, yet again, how totally screwed up the whole copyright/file sharing debacles are. as for those punished either in or out of court for putting their own crowd sourced subs on the net, it's a typical 'i wont do it, i dont want to do it and therefore i'm not going to let anyone else do it either' attitude from the entertainment industries. the only thing they are consistently good at is fucking up things for others, even when having no interest, as usual, in supplying what is wanted, asked for or needed to make the experience of watching one of their own media files better! what tossers!!

On the bright side...

XBMC is one of those places where crowd sourcing works wonderfully. Gotta love subtitles even if they don't synch up quite perfectly right off they're doing a fantastic job. So, shout outs to all those who've been making plugin's and add-ons, linking up shows and putting up subtitles! A great big Thank You to all of you from all of us! Special thanks to addic7ted, sc0rp, and the gang! Keep 'em commin'. Kudo's to Navi-X, Ice Films, Project FreeTV, 1Channel. You know who you are. We Love You!

Do the studios charge the consumer for subtitles? No. Are scriptwriters paid extra for subtitles? No. So why do we have them? Those that point to the law forget that subtitles were added before the law existed. Why? Because the studios, distributors, and venues know they will get more viewers if they provide subtitles, and thus more revenue.

Now it seems the industry wants money both coming and going - charge to provide subtitles and then reap the profits from those in need of subtitles. It is clear that subtitles are used mostly by those with hearing disabilities, or by those who are watching a film not in their first language. Add the fact that adding subtitles are now required by law, and it becomes rather obvious "fair use" applies here.

Only one question really

Either way, it seems like it opens up some pretty serious copyright questions.

The only copyright question this helps bring up are why the heck are America's copyright laws so insanely stupid and one sided? Copyright needs to be massively reeled in or outright repealed at this point.

Can we say overreach?

The ADA should trump copyright, hands down. Actually, it already does in many places.

I previously worked in a college office that converted books and articles for blind & dyslexic students. The ADA and various federal statutes mandate the conversion of files, which we stored and shared with whichever students required them. These conversion processes were essentially format-shifting, and I'm sure there are some book publishers out there who would be screaming to know we did that, but it happens all around the country right now and is not only legal but required to keep schools from getting sued. As it should be.

Denying people with disabilities access based on copyright is where the copyright maximalists will start going down, because the disability lobby is a lot stronger than it used to be. Plus, it has the moral high ground.

This must be....

Does it benefits someone? Yes , Does it cause prejudice to someone? Heck no!!!

And YES there are huge benefits from the subtitles for those who need them (See ADA you jack ass)

As a matter of fact we should force all sources to be available with subs, even theaters, I mean think about it when they have 4 screens showing a movie like Avengers and I cant go see It pisses me off.

I love foreign film because there almost always shown with the subs.

So basically I need to wait for everything to come out to DVD or BRay and then I have to BUY everything I want to see because there closing rentals and now it'll be Netflix?

I mean for the love of GOD we have rights to no and I don't mean the right to shut up!!!

Please remember that at the heart of that stupid debate his basically the right for everyone to acces the same content.